Vilca-Inga v. SAIF

                                430

  This is a nonprecedential memorandum opinion
   pursuant to ORAP 10.30 and may not be cited
        except as provided in ORAP 10.30(1).
     Argued and submitted March 13, 2023, affirmed August 9, 2023


           In the Matter of the Compensation of
              Elvin R. Vilca-Inga, Claimant.
                  Elvin R. VILCA-INGA,
                        Petitioner,
                             v.
                  SAIF CORPORATION
                and Roses Cattle Company,
                       Respondents.
               Workers’ Compensation Board
                    2005820; A177556


   Jodie Anne Phillips Polich argued the cause for petitioner. Also on the briefs was Law Offices of Jodie Anne
Phillips Polich, P. C.
   Beth Cupani argued the cause and filed the brief for
respondents.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2023)           431

        HELLMAN, J.
          Claimant seeks judicial review of an order of the
Workers’ Compensation Board (board) affirming an order of
an administrative law judge (ALJ) upholding SAIF’s denial
of his injury claim. In his assignment of error, claimant contends that the board erred in concluding that his claim was
not compensable because it did not arise out of his employment. For the following reasons, we conclude that the board
did not err and affirm.
        “We review the board’s order upholding the denial of
claimant’s claim for errors of law and substantial evidence.”
Bruntz-Ferguson v. Liberty Mutual Ins., 

,

 (2021) (citing ORS 656.298(7), ORS 183.482(7),
(8)).
         Claimant experienced abdominal pain while working in the mountains as a sheepherder. The following day,
he notified his employer about the pain and was taken to a
local clinic and then to a hospital approximately 90 miles
away. Claimant had an appendectomy for acute appendicitis
with a perforation (abdominal condition). After SAIF denied
claimant’s workers’ compensation claim, the ALJ upheld the
denial and determined that claimant’s abdominal condition
did not arise out of his employment because there was “no
evidence in the record that the trip to the local clinic and
90-minute drive to the hospital caused his complications
from the appendicitis.”
         The board adopted and affirmed the ALJ’s order. In
rejecting claimant’s arguments, the board found that claimant failed to meet his burden of proof because the record
lacked any medical evidence that his abdominal condition
was caused by his work activities or his work environment.
On judicial review, claimant renews the arguments that he
made to the board—that his geographically remote work
environment “exposed him to an increased risk or extent of
harm due to delay caused in obtaining medical care resulting in his appendix rupturing and developing complications
of that rupture.”
         We conclude that the board did not err in determining that claimant failed to prove that his abdominal condition
432                                       Vilca-Inga v. SAIF

arose out of his employment. See Phil A. Livesley Co. v. Russ,

, 

 (1983) (“The worker has the burden of proving that the injury arose out of and in the course
of employment.”). “This court has construed the phrase ‘arising out of’ to mean that a workplace injury must be a material contributing cause of disability or the need for medical treatment in order to be compensable.” Schleiss v. SAIF,

, 

 (2013).
         We understand claimant to argue that his appendicitis and its complications were “neutral risks” and that his
remote work location increased the likelihood of those complications. “Regardless of the category of risk, however, to meet
the threshold for the ‘arising out of’ prong, there must be a
causal connection between the injury and the employment.”
Bruntz-Ferguson, 

. As relevant here, the
Supreme Court has explained that an appendicitis attack
that occurs while an employee is working does not arise out
of employment because “[t]here was no causal connection
between the work and the attack.” Clark v. U.S. Plywood,

, 

 (1980); see also Livesley,

 (same). Therefore, claimant bore the burden of
connecting his abdominal condition to his remote work environment. See Redman Industries, Inc. v. Lang, 

, 

 (1997) (“A causal connection must be linked
to a risk connected with the nature of the work or a risk to
which the work environment exposed claimant.”).
         Although claimant acknowledges that no evidence
relates his abdominal condition to his work activities, he
asserts that the record shows that his geographically remote
work environment increased the likelihood of his abdominal
condition by delaying his access to treatment. The record
does not support claimant’s assertions. In his deposition, the
physician who performed claimant’s Independent Medical
Evaluation testified that it was not uncommon for individuals to seek treatment approximately one day after symptoms
begin—as claimant did here—and that “no specific risk factor[s]” are associated with a ruptured appendix. Moreover,
the physician testified that he could not determine when
claimant’s appendicitis began, when his appendix ruptured,
or whether his appendix would have ruptured if he had
Nonprecedential Memo Op: 

 (2023)           433

sought medical treatment sooner. Claimant did not submit
any medical testimony to the contrary that supported his
position, nor did he explain how the existing evidence leads
to a decision in his favor.
         In light of the foregoing, we conclude that the
record allows a reasonable person to find that the record
lacks evidence of a causal link between claimant’s abdominal condition and his remote work environment. Therefore,
the board’s findings are supported by substantial evidence.
See ORS 183.482(8)(c) (“Substantial evidence exists to support a finding of fact when the record, viewed as a whole,
would permit a reasonable person to make that finding.”).
Further, the board’s conclusion that the claim did not arise
from claimant’s employment is supported by substantial
reason because it logically followed the board’s findings of
fact. See Bruntz-Ferguson, 

 (“In reviewing
for substantial evidence, we also review the board’s order for
substantial reason, which requires us to determine whether
the board provided a rational explanation of how its factual
findings lead to the legal conclusions on which the order is
based.”). The board did not err.
        Affirmed.